[ v12 p667 ]
12:0667(132)CA
The decision of the Authority follows:
12 FLRA No. 132
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 9-CA-20032
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Judge further found that certain other statements made by the Respondent
were not violative of section 7116(a)(1) of the Statute; exceptions
with regard to one of these statements were filed by the General
Counsel.
Pursuant to section 2423.29 of the Authority Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, and noting especially that
exceptions were filed only as to one of the Judge's findings, the
Authority hereby adopts the Judge's findings, conclusions and
recommendations except as modified below.
Contrary to the Judge, the Authority finds, in agreement with the
General Counsel, that the Respondent violated section 7116(a)(1) of the
Statute when Supervisor Johnson, on September 11, 1981, told Union
Steward Chun that she "had just read Chun's 20-page audit and wasn't
Chun embarrassed that it was so poor and that Chun had not been
performing very (well) as a Service Representative." Noting particularly
that the statement was made by her second line supervisor during a
labor-management relations meeting in which Chun was the Union spokesman
and that the statement was completely unrelated to any matters
previously discussed at that meeting, the Authority concludes that such
a statement denigrating Chun's work performance in the context of a
labor-management discussion could reasonably have the effect of
inhibiting Chun's performance as a union steward and was in these
circumstances coercive of Chun's protected right to present grievances
to that level of supervision and thereby interfered with her right to
engage in protected activity under section 7102 of the Statute. /1A/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland, shall:
Cease and desist from:
(a) Interfering with, restraining, or coercing Denise Chun in the
exercise of her duties as a steward of the American Federation of
Government Employees, AFL-CIO, by making statements to her directly
relating her activities as a AFGE steward to (1) the quality of her job
performance, (2) her potential for promotion, and (3) her concern for
other employees; or by raising such matters at a time Chun is
fulfilling her responsibilities as a union steward.
(b) In any like or related manner, interfering with, restraining, or
coercing Denise Chun, or any other employee, in the exercise of rights
guaranteed by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Post at its Region IX, San Francisco Sutter Street offices,
in conspicuous places where notices to employees are customarily
posted, copies of the attached Notice on forms to be furnished by
the Authority. Upon receipt of such forms, they shall be signed
by a representative of the Department of Health, and Human
Service, Social Security Administration, Baltimore, Maryland, and
shall be posted for 60 consecutive days thereafter. Reasonable
steps shall be taken to ensure that said Notices are not altered,
defaced, or covered by any other material.
(b) Pursuant to section 2424.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region IX, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., August 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain, or coerce Denise Chun in the
exercise of her duties as a steward of the American Federation of
Government Employees, AFL-CIO, by making statements to her directly
relating her activities as a AFGE steward to (1) the quality of her job
performance, (2) her potential for promotion, and (3) her concern for
other employees; or by raising such matters at a time when Chun is
fulfilling her responsibilities as a union steward. WE WILL NOT, in any
like or related manner, interfere with, restrain, or coerce Denise Chun,
or any other employee in the exercise of rights guaranteed by the
Federal Service Labor-Management Relations Statute.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region IX, for
the Federal Labor Relations Authority whose address is: 530 Bush
Street, Room 542, San Francisco, California 94108, and whose telephone
number is: (415) 556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 9-CA-20032
Michael A. Amaro, and
Thomas J. Lee, Esq.
For the Respondent
Vince Morgante
For the Charging Party
Bari Stolmack Ness, Esq.
For the General Counsel
Before: FRANCIS E. DOWD
Adnistrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat., 1191, 5
U.S.C. 7101, et seq. It was instituted by the Acting Regional Director
of the Ninth Region of the Federal Labor Relations Authority by the
issuance of a Consolidated Complaint and Notice of Hearing dated
December 30, 1981. /1/ The Complaint was issued following an
investigation of an unfair labor practice charge filed on October 14,
1981 by American Federation of Government Employees, AFL-CIO, herein
referred to as the Union, Charging Party, or AFGE. The Complaint
alleges that Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, herein referred to as Respondent or
SSA, violated Section 7116(a)(1) by reason of statements made to Union
Steward Denise Chun, which tended to interfere with, restrain, or coerce
Chun in the exercise of rights guaranteed under the Statute. Respondent
filed an Answer denying any violation of the Statute. The only issues
to be resolved are whether the statements were made and, if so, whether
such statements violate Section 7116(a)(1). Resolution of the factual
issue hinges upon making a credibility resolution.
A hearing was held in San Francisco, California, at which time the
parties were represented by counsel and afforded full opportunity to
adduce evidence and call, examine and cross-examine witnesses and argue
orally. Briefs filed by the General Counsel and Respondent have been
duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
/2/
Findings of Fact
1. At all times material herein, the Union has been, and is, a labor
organization within the meaning of 5 U.S.C. 7103(a)(4) of the Statute.
2. At all times material herein, Respondent has been, and is, an
agency within the meaning of Section 7103(a)(3) of the Statute.
3. On August 30, 1979, AFGE was certified as the exclusive
representative of a national consolidated unit consisting of, among
other units, the following unit:
All General Schedule (GS) employees in Region ix (San
Francisco
Region), Bureau of District Office Operations, Social Security
Administration, Department of Health and Human Services, excluding
management officials, supervisors, guards, professionals,
employees engaged in Federal personnel work in other than a purely
clerical capacity, NYC, WIN, and Work-Study employees.
4. At all times material herein, the terms and conditions of a local
collective bargaining agreement have been in effect between the Union
and Social Security Administration, covering the employees in the unit
described above.
5. At all times material herein, Joyce Johnson and Denise Smith were
supervisors and/or management officials within the meaning of Sections
7103(a)(10) and/or (11) of the Statute, respectively, and agents of the
Respondent. Johnson was the Operations Officer of Respondent's Sutter
Street Office and she negotiated labor-management issues which had a
day-to-day impact or which constituted an operational change. Denise
Smith is the District Manager at the Sutter Street Office and she
negotiated matters which had a District-wide impact, including new
personnel policies or policy changes. The aforesaid negotiations were
conducted with Union representative Denise Chun, steward at the Sutter
Street offices of Respondent. Chun also served as Union Bay Network
Vice-President. She has been employed by SSA since 1976 and has been a
steward for approximately four years.
6. Denise Chun's Union activities are numerous. She bargains, files
grievances, reports violations, has numerous complaints brought to her,
attempts to informally resolve problems, and contacts the numerous
officials in the local and branch offices of the Union. During the
course of performing her Union duties, both as the local steward and as
the Network Vice-President, Chun has occasion to use official time. In
order to obtain this official time, Chun would submit a Form SSA-75,
"Request for Official Time" sheet at the close of the business day or at
the end of the week and management would sign off on it. Respondent's
witness Joyce Johnson confirms that it was the practice to approve
Chun's use of official time "post-adjudicatively." /3/
Article 11, Section B, of the Agreement states that in granting
official time the following "limits" shall apply: "The Network
Vice-Presidents may spend up to fifteen (15) percent of their available
working time in an operating month." According to Chun, she has been
instructed by the Union that this section is to be interpreted as
establishing a minimum and not a ceiling (Tr. 100, 101). With respect
to Chun's duties as a Local Steward, Article 11, Section A states that
"Reasonable amounts of time shall be granted" for specified
labor-management activities. Chun's own interpretation of this Article
is that it contains no ceiling and no minimum (Tr. 99, 100).
Although the parties' collective bargaining agreement contains a
provision for Respondent to contest the misuse or abuse of the official
time allocation (GC EX 2, pg. 22, Article 11, Section D), there is no
evidence that management ever filed a complaint, even though Chun often
devoted the entire workday to Union activity. As correctly noted in the
General Counsel's brief, official time allocation is not an issue in
this proceeding. This is because management always approved Chun's
requests for official time, regardless of whether the requests were not
made in advance, and regardless of whether the amount of time may have
been deemed unreasonable.
The foregoing references to the parties' collective bargaining
agreement, as well as Chun's testimony concerning interpretations
thereof, are significant because this evidence corroborates the
testimony of Johnson who stated (1) that she had to speak to Chun on
more than three occasions about her use of official time, and (2) that
before Johnson left the office in November, steps had been initiated to
require Chun to obtain advance approval of her official time requests.
In my opinion, what this case is all about is the reactions and
responses by supervisory officials of Respondent in a situation where
they have to deal with an intelligent, articulate, and extremely
aggressive Union steward.
The Alleged Unfair Labor Practices
7. On July 2, 1981, Denise Chun met with Joyce Johnson in her office
to discuss full security guard coverage and the number of Service
Representatives that would be designated on any given day for late
interviewing as well as the various options the Service Representative
team could take. Upon completion of that discussion, Chun changed the
subject to a more personal matter; i.e. her own job and the fact that
she was thinking about going to law school if she could "work out her
schedule" with SSA. /4/ Johnson replied that she felt that Chun
certainly was "smart enough for it." Chun's remark that she would have
to work out a schedule with SSA prompted, in my opinion, Johnson to
bring up the subject of Chun's union activities and the amount of time
spent by Chun in those activities. Because the tone of the conversation
apparently was rather friendly at this point in time, Johnson asked Chun
if she ever considered working for the Union full-time or transferring
to another Social Security Office where her union activities did not
cause such an impact, and where management would not be so concerned.
Clearly, if Chun genuinely wanted to go to law school and was concerned
about adding this to her already busy schedule, Johnson's suggestion
probably was intended to be helpful. However, it wasn't received that
way by Chun, particularly when Johnson added that the time being spent
by Chun on union activity was impacting on her service to the public.
/5/ This obvious criticism of one's performance is the kind of remark
that many employees would find offensive, even those with a less
combative personality than Chun. The record doesn't indicate precisely
how Chun, an articulate and aggressive person, responded to Johnson's
accusation, but apparently one thing led to another and the conversation
ended with Johnson stating to Chun that she had a king-sized ego, that
her ego was so big that it was standing in the office next door, and
that her ego was so big that it probably slept in a twin bed next to
her.
8. On July 21, Chun and Johnson had a dispute over whether Chun was
allowed to poll employees on worktime. According to Johnson, whose
version I credit, Chun broke an agreement to confine her polling to the
lunchroom during a specified period of time. When Johnson discovered
Chun polling employees at their work station, Chun replied that she
could poll employees wherever she wanted and that it was not "internal
union business" even though it involved asking employees whether they
wanted to accept a management proposal concerning lunch schedules.
The following day, on July 22, Chun and Johnson met again, to discuss
the reorganization of the Title 16 program. About three-quarters of the
way through the meeting Johnson stopped and stated to Chun that she
really wanted to apologize for her behaviour regarding the events of the
previous day. Chun responded that an apology wasn't necessary, that she
didn't want a repetition of such a dispute. At that point Johnson
repeated what she had told Chun the previous day, namely, that Chun had
a habit of flaunting her Union activity "in management's face." Johnson
then launched into a discussion about Chun being 31 years of age, and
still only a Service Representative and a GS-7. Johnson stated that
Chun's rank and position were the result of the time she spent engaging
in Union activity and that Chun was not likely to get ahead or to be
promoted within the agency so long as she continued to engage in Union
activity. She also stated that the AFGE Council was run by Claims
Representatives and that National Union officials were GS-10s and above,
and that Chun could no more further her career in the Union hierarchy or
in the Agency until she could get promoted to a Claims Representative,
and that such a promotion was unlikely until she reduced her Union
activity and her use of Official time.
9. On September 11, 1981, Johnson again met with Chun to discuss
telephone coverage in the Service Representative unit. The issue had
been raised in a Service Representatives' unit meeting, occurring on
September 9th. During that meeting a number of other issues were raised
such as the account numbers assigned, the account number station, a
numbers flasher and a numbers dispenser, but the most important issue
was the telephone coverage since a clerical named Mike McDermott was
being promoted out of the unit. Apparently two options were being
considered: (1) that telephone coverage would be done by Service
Representatives, or (2) that management would replace the lost clerical
with another. The meeting began with Johnson questioning Chun as to
whether the agency had to contact the Union regarding the changes and
Chun advised that it did. Johnson then stated that she had already made
certain changes, about which Chun advised she had no objection because
there was no material impact. After Johnson advised about making the
changes and Chun responded, Johnson abruptly changed the conversation
stating that she had just completed reading Chun's 20-page audit given
to her by Jim Brown. She asked Chun if she wasn't embarrassed that it
was so poor. She then stated that she wondered what Chun's appraisal
would look like and that she hadn't been performing well as a Service
Representative. Chun asked Johnson if she could get back to the
conversation regarding the telephone coverage. The meeting concluded
with Chun stating that she would get back to Johnson by the close of
business.
10. On Wednesday, October 7, 1981, at approximately 11:20 a.m. Chun
received a telephone call from Joyce Johnson asking her to come to her
office. Chun asked whether the matter could wait until the following
week because she was departing for Union training in Long Beach at 1:00
p.m. Johnson stated that she already was aware that Chun was scheduled
to leave as she had just signed off on Chun's leave-without-pay slips.
She stated that the matter would not wait until Chun returned from leave
so she would discuss it with Chun over the telephone. She began by
saying that Chun was not performing well as a Service Representative as
she was always on official time, engaged in Union activities of dubious
value to the Agency. She stated that Chun's co-workers had been
complaining about Chun not doing her fair share of the Service
Representative work and that they didn't bring their complaints to Chun
directly because she was the Union steward. She stated that Chun was
probably in the wrong job, that she really wasn't performing well, and
asked her if she had ever considered getting a job in Labor Relations
elsewhere. She reiterated her statements that Chun wasn't performing
well as a Service Representative, because she was on official time,
engaged in Union activities. Chun responded by stating that she held
several Union positions. Johnson said that she would discuss the matter
with her later and that ended the conversation. It should be noted that
Johnson was a second-line supervisor. Chun was immediately supervised
by Jim Brown, and later, by LaVonne Wilson.
11. On October 14, 1981, Chun submitted two memos to District
Director Denise Smith involving unilateral actions. Chun and Smith met
to discuss these matters and Smith agreed to rescind the unilateral
action, but she had some questions regarding the rotation of Claims
Development Clericals to the Mail Room. She thought the matter had been
negotiated earlier in the year. When Chun disagreed, Smith agreed to
rescind the memo. At that point, Smith changed the subject and advised
Chun that she had just completed reading Chun's 20-page audit and that
it was criminal that she had not been performing and was not performing
as a Service Representative. She stated that she would begin denying
Chun's official time and that Chun would receive written notice the
following day to that effect. She stated that Chun's performance as a
Service Representative was deplorable and that she would reduce the
official time to 15 percent of the operating month. A conversation
thereafter ensued between Chun and Smith, regarding the circumstances
which had preceded the performance audit. Smith ended the conversation
by stating that Chun's abilities as a Service Representative were never
in question, but that her Union activities and the time she spent on
official time accounted for Chun's appraisal. As Chun got up to leave
the office, Smith stated that Chun ought to learn to be more selfish and
concerned with her career in the agency rather than with other people's
rights. /6/ Two days later, the instant unfair labor practice charge
was filed by the Union.
The Testimony of Respondent's Witnesses
12. In her testimony, Johnson admitted that in her opinion the
amount of time spent on Union activities affected Chun's ability to
perform her assigned work for SSA. She admitted that this "bothered"
her because she felt Chun's primary function, for which she was being
paid by SSA, was to function as a Service Representative. Johnson
believes that Chun's failure to be available to fully perform her
Service Representative duties had an impact on her service to the public
because she wasn't on duty to answer the phone and people had to wait
longer before they were serviced. What particularly bothered Johnson
was the fact that Chun was violating the terms of the floater agreement
and simply not living up to the terms of the bargain she had made with
Johnson. The floater agreement was entered into shortly after Johnson
arrived there in June 1981. In order to accommodate Chun's Union
activities, Chun was given a schedule whereby she would do less than the
full range of Service Representative duties. She was required to be up
at the front desk for the first 12 working days per month and the
balance of her time was for her adjudication duties at her own work
station. For her part, Chun was expected to confine her
labor-management activities to the latter half of the month. For its
part, management was supposed to defer labor-management issues and
problems to the latter part of the month. According to Chun, situations
arose when labor-management problems arose during the first half of the
month. When these occurred, management recognized that it was an
exception to the agreement and authorized official time.
Notwithstanding the fact that she was granted official time, Chun seemed
to feel that management was in effect repudiating the agreement, thus
permitting her to regard the agreement as null and void. This was
Chun's explanation and, indeed, her excuse for not keeping her part of
the bargain. But it was the fact that Chun had made an agreement and
was completely disregarding it, that really bothered Johnson.
The question is what, if anything, did Johnson do about Chun's
noncompliance with the terms of the floater agreement. In her
testimony, Johnson insisted that the only thing she did was to call Chun
into her office to remind her of their agreement. Thus, whenever
Johnson was asked whether she discussed with Chun the amount of official
time utilized by Chun, Johnson's response was limited to saying that she
was merely reminding Chun of her obligation to comply with the floater
agreement. Johnson did not attempt to relate the nature of these
conversations in terms of what was said by each party. With a few
exceptions, Johnson did not attempt to present a different version of
the conversation. Rather, Johnson either did not recall or
categorically denied suggesting to Chun that there was a relationship
between her union activities and her job performance. Johnson also
denied suggesting to Chun that she might consider transferring to
another office where her union activities would have less impact on her
own performance.
Notwithstanding Johnson's true sentiments and clear displeasure with
Chun's significant use of official time, she nevertheless asserts that
she never communicated those feelings to Chun. I find this to be
incredible. Chun's excessive use of official time was a continuing
problem to management because, according to Johnson, there was an
adverse impact on the public to be served, and her co-workers were
complaining to management that Chun was not pulling her fair share of
the workload. In these circumstances, it is unrealistic to conclude
that Johnson had the forebearance to restrain from discussing this with
Chun. Except as otherwise noted above, and based upon my observation of
the witnesses and their demeanor, I am unable to accept as credible, the
testimony of Johnson. Rather, I rely on the more plausible and more
believable version of Chun with respect to the statements alleged to be
violations of Section 7116(a)(1).
13. Denise Smith testified that the sole subject discussed with Chun
was use of official time. She instructed Chun to comply with the Master
Agreement provisions and obtain advance approval for any official time
requested. Smith's request was later repeated in a written memorandum.
Smith admits talking to Johnson about the amount of official time used
by Chun but denies discussing or even knowing about Chun's performance
as a Service Representative. Because the two subjects are obviously
interrelated, and because Johnson was extremely concerned about it
herself, I find it hard to believe that Smith would be unaware of Chun's
performance as a Service Representative. A more likely scenario is that
Johnson's displeasure with Chun and the supervisor's performance audit
of Chun's performance were both communicated to Smith who, in turn, felt
it was necessary to mention these matters to Chun, perhaps by way of
explanation or justification, at the meeting when Smith advised Chun
that management had decided to no longer approve her official time
requests after the fact. Smith's answers to questions were evasive
whereas Chun's recollection of detail was unmatched by either of
Respondent's witnesses. Based upon my observation of the witnesses and
their demeanor, and for the reasons previously stated, I discredit Smith
and accept the testimony of Chun.
Discussion and Conclusions of Law
Section 7102 of the Federal Service Labor-Management Relations
Statute insures that each employee shall have the right to form, join,
or assist a labor organization without fear of penalty of reprisal and
that each employee shall be protected in the exercise of such right.
Section 7116(a)(1) establishes that it is unlawful for an agency to
interfere with, restrain or coerce any employee in the exercise of any
right under the Statute, including the right delineated in Section 7102.
Early on under the Order, it was established that protected activity
could not be considered or referenced, even non-judgmentally, in
connection with performance discussions. In Naval Facilities
Engineering Command and AFGE Local 2623, 3 A/SLMR 209 (1973), a case in
which the phrase "active in the union" was placed on an employee's
appraisal form, the Assistant Secretary stated:
"If the right to engage freely in union activities has any
significant meaning, an employee should have the right to expect
that such a factor forms no part of his appraisal." Naval
Facilities, Id., at 218.
Accordingly, the Assistant Secretary ordered the Respondent to expunge
any reference to union activities from the employee's file, and ordered
the Respondent to instruct its supervisors not to insert any remark or
comment in an appraisal form or reference letter regarding the union
activities of any employee. See also, IRS, Wilmington District and
NTEU, 6 A/SLMR 335 (1975).
Similarly, oral communications by a manager which created a nexus
between performance of promotion potential and protected activity were
also unlawful under the Order. In U.S. Customs Service, Miami, Florida,
6 A/SLMR 695, Supplement 6 A/SLMR 259, 261, statements implying union
activity was a "negative factor" in a performance rating were found to
be violative. In so holding the Assistant Secretary adopted the
Administrative Law Judge's statement that:
"It is apparent that any threats to employees, express or
implied, in respect to their union activities will have a
restraining effect upon such employees and will constitute an
unfair labor practice." U.S. Customs, Id., at page 261.
A similar holding was indicated in U.S. Tank Command, Warren,
Michigan, 4 A/SLMR 742 (1974). See also, IRS, Detroit Data Center and
NTEU, 7 A/SLMR 554 (1977), wherein questioning a steward during a
promotion interview regarding the extent to which she was taken from her
job duties to engage in protected activity was found to be coercive, and
hence, unlawful. The Assistant Secretary adopted the finding that " . .
. The right to engage in union activities would be seriously jeopardized
if employees were interrogated about the relationship between union
activity and work performance." Id., at pages 558-559.
These cases arising under Section 19(a)(1) of the Executive Order
advance principles equally valid under Section 7116(a)(1) of the
Statute. There should be no doubt that the Statute is designed, as was
the Executive Order, to protect employees from statements suggesting any
relationship between an employee's protected activity and that
employee's present or future employment status with an agency. To the
extent that any of the statements made herein suggest such a nexus they
are violative of Section 7116(a)(1) of the Statute.
It is my opinion, and I find, that the statements made by
Respondent's agents Johnson and Smith occurred in separate and distinct
incidents and were not part of any plan or design. In chronological
order, these statements are as follows:
A. Joyce Johnson's July 2, 1981 statement to Union steward
Denise Chun that the time she spent on Union activities was
impacting on her service to the public.
Although this statement was made after completion of a
labor-management discussion, it nevertheless was a criticism of
Chun's performance directly related to her activities as a Union
steward. On the one hand, Johnson had approved Chun's requests
for official time, but at the same time she was attempting to
intimidate Chun into reducing the time she spent in Union
activities. In my opinion, Johnson's statement constitutes an
informal appraisal of Chun's work performance which, because it
contains a nexus between performance and protected activity, is
unlawful. Accordingly, I find this statement to be a violation of
Section 7116(a)(1). /7/
B. Joyce Johnson's July 22, 1981, statement to Union steward
Chun, during the course of a labor-management relations meeting,
that Chun's rank and position were the result of the time she
spent engaging in Union activity and that Chun was not likely to
get ahead or be promoted within the agency as long as she
continued to engage in Union activity, and that a promotion was
unlikely until she reduced her Union activity and her use of
official time.
In my opinion, Johnson's statements that Chun's current
position and future lack of promotability are based on the level
of Union activity in which she is engaged, amount to the very type
of illegal nexus found in the above-cited cases. Accordingly, I
find these statements violate Section 7116(a)(1).
C. Joyce Johnson's September 11, 1981 statement to Chun, that
Johnson had just read Chun's 20-page audit and wasn't Chun
embarrassed that it was so poor and that Chun had not been
performing as a Service Representative.
In my opinion, Johnson's statement, standing above, does not
provide a nexus between her Union activity and her work
performance. Had the same statement been made during a
performance appraisal interview it would have been lawful. The
fact that Chun was in Johnson's office on another matter,
involving labor-management business does not, in and of itself,
provide sufficient nexus to make the statement unlawful. Nor do I
agree with the General Counsel that Respondent was engaged in a
"systematic and continuing assault" of which this incident was
merely one part.
D. Joyce Johnson's October 7, 1981, statement to Chun
immediately prior to Chun's departure for Union training (about
which Johnson was aware), that Chun was not performing well as a
Service Representative as she was always engaged in Union
activities.
Clearly, Johnson seemed to resent the fact that Chun, who spent
an excessive amount of her time on Union activity, would be absent
from the office for Union training. Johnson's frustration
prompted her to call Chun on the telephone and vent her true
feelings to the effect that Chun's activities were of dubious
value to the Agency. In my opinion, Johnson's accusation that
there was a relationship between Chun's Union activities and her
performance as a Service Representative, provides the necessary
nexus to make such statement unlawful, and therefore, a violation
of Section 7116(a)(1).
E. Denise Smith's October 14, 1981 statement to Chun, during
the course of a labor-management relations meeting, that Chun's
Union activities and the time she spent on official time accounted
for her poor appraisal; and that Chun ought to learn to be more
selfish and concerned with her career in the agency rather than
with other people's rights.
Smith's statement was made during a meeting in which Chun was
officially being told that future requests for official time had
to be approved in advance. Clearly, Smith had a right to require
compliance with the Agreement. Smith's mistake was to introduce
the subject of Chun's performance appraisal and her career with
the Agency, and tie these together with Chun's use of official
time for Union activities. By so doing, Smith provided what has
been referred to herein as the nexus between one's work
performance and one's statutorily protected right to be engaged in
Union activities. Accordingly, Respondent violated Section
7116(a)(1) by Smith's statements.
Based on the foregoing, I conclude that the General Counsel has
established by a preponderance of the evidence that Respondent's agents
made numerous statements to Union steward Denise Chun which impinged on
her freedom to engage in protected activity, and which are clearly
incompatible with the protections afforded by Section 7102 of the
Statute. The effect of such statements is to interfere with, restrain,
and coerce Denise Chun in the exercise of her statutory right to engage
in protected activity. Accordingly, I conclude that Respondent violated
Section 7116(a)(1) by the statements of its agents herein.
Having found that Respondent violated Section 7116(a)(1) of the
Statute, I recommend that the Authority remedy this violation by the
issuance of the following:
ORDER
Pursuant to Section 7118 of the Federal Service Labor-Management
Relations Statute and Section 2423 of the Rules and Regulations of the
Federal Labor Relations Authority, it is hereby ordered that Department
of Health and Human Services, Social Security Administration, Baltimore,
Maryland, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing Denise Chun, in
the exercise of her duties as a steward of American Federation of
Government Employees, AFL-CIO, by making statements to Denise Chun
directly relating (1) the quality of her job performance, (2) her
potential for promotion, and (3) her concern for other employees,
to her activities as an AFGE steward.
(b) In any like or related manner, interfering with,
restraining, or coercing AFGE steward Denise Chun, or any other
employee, in the exercise of rights guaranteed by the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Post at its Region IX, San Francisco Sutter Street offices,
in conspicuous places where notices to employees are customarily
posted, copies of the attached Notice marked "Appendix" on forms
to be furnished by the Authority. Upon receipt of such forms,
they shall be signed by a representative of Department of Health
and Human Service, Social Security Administration, Baltimore,
Maryland, and shall be posted for 60 consecutive days thereafter.
Reasonable steps shall be taken to ensure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Acting Regional Director of Region IX of the
Federal Labor Relations Authority whose address is: 530 Bush
Street, Suite 542, San Francisco, California 94108, in writing,
within 30 days from the date of this Order as to the steps it has
taken to comply herewith.
FRANCIS E. DOWD
Administrative Law Judge
Dated: September 9, 1982
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT interfere with, restrain, or coerce Denise Chun, in the
exercise of her duties as a steward of American Federation of Government
Employees, AFL-CIO, by making statements to Denise Chun directly
relating (1) the quality of her job performance, (2) her potential for
promotion, and (3) her concern for other employees, to her activities as
an AFGE steward. WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce AFGE Steward Denise Chun, or any other
employee in the exercise of rights guaranteed by the Federal Service
Labor-Management Relations Statute.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced, or covered by any other material. If employees have any
question concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
Region IX of the Federal Labor Relations Authority whose address is:
530 Bush Street, Suite 542, San Francisco, California 94108 and whose
telephone number is (415) 556-8105.
/1A/ See U.S. Department of Interior, Office of the Secretary, U.S.
Government Comptroller for the Virgin Islands, 11 FLRA No. 91 (1983),
wherein the Authority, in reversing the Judge in part, concluded that
management's remark in the Union President's performance appraisal
pertaining to his protected action violated section 7116(a)(1) by
infringing on his right to engage in protected activity and to freely
present the views of the Union without fear of Penalty or reprisal
pursuant to section 7102 of the Statute.
--------------- FOOTNOTES$ ---------------
/1/ The Consolidated Complaint also contained allegations concerning
Case No. 9-CA-20025 which was withdrawn by order of the acting Regional
Director on February 22, 1982. Case No. 9-CA-2005 is therefore not a
part of this proceeding.
/2/ Counsel for the General Counsel submitted an excellent and
well-organized brief containing proposed findings of fact, conclusion of
law, order, and notice to employees. After carefully reviewing the
entire record, I have decided to adopt, with minor modifications, these
proposed findings and conclusions.
/3/ The practice, at least with respect to Chun, was at variance with
an agreed-upon procedure set forth in Respondent's Exhibit No. 1, a
clarification of contract Article 11 dealing with "Use of Official
Time."
/4/ I credit Johnson over Chun with respect to who brought up the
subject of law school, but with respect to the remainder of the
conversation, I have to credit Chun.
/5/ Johnson admits that this is how she felt, but denies telling Chun
how she felt.
/6/ Smith, whose testimony I am unable to credit, testified that her
conversation with Chun was confined to use of official time. On direct
examination she did not even state the purpose of the discussion which
was to require Chun to adhere to the contract provisions requiring
advance approval of official time. Smith denied knowing about Chun's
performance on a Service Representative of discussing her performance
with her. Chun's testimony is more plausible and believable.
/7/ However, I find no violation of Section 7116(a)(1) with respect
to the statement by Johnson made earlier on July 2 in which she
suggested that Chun might want to work for the Union or transfer to a
smaller office where the demands of her job and her Union activities
would enable Chun to fit law school into her already very busy schedule.
This statement occurred after completion of the labor-management
discussion and the conversation was initiated by Chun. Johnson's
response, made in this particular setting, and absent any nexus to her
work performance was not unlawful.